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There is no shortage of cases concerning NJ Restraining Orders, and the most recent appellate case on this topic just came down on June 5. In T.M.S. v. W.C.P., the issue was whether the court abused its discretion by reinstating a final restraining order against the plaintiff, T.M.S, sua sponte, or on its own. The appellate court held that the lower court did in fact abuse its discretion and denied the defendant due process under the law. It reversed the court’s ruling. The (somewhat confusing) procedural facts are as follows:

A temporary restraining order (TRO) had been put in place due to domestic violence which TMS had admitted to. A final restraining order (FRO) was implemented, which TMS moved to vacate. He was denied. He filed again to dismiss the FRO, and WCP did not appear for the hearing, despite being properly served with notice. As a result, the court granted the unopposed application to vacate the FRO. With this victory, defendant then moved for relief from having to forfeit his weapons. At this hearing, there was a question of whether plaintiff was actually properly notified of the original dismissal of the FRO, and so, the court reinstated the FRO (and so, the weapons forfeiture matter was dismissed).

In determining whether a final NJ restraining order can be dismissed, the court relies on eleven factors from the Carfagno case if there is good cause for dismissal. The factors are: (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing NJ restraining order because she wasn’t there – but the trial court did note that the defendant had never violated the order, defendant’s consistent sobriety, attended domestic violence counseling, and suffered from health problems that made it difficult for him to inflict any violence, even if he had wanted to. Therefore, on the basis of these factors, the judge determined that the FRO was no longer required to protect the plaintiff.

involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant’s request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. Continue Reading →

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Divorces can be expensive. You are splitting up your assets, and probably splitting a two-income home in half (or having to provide for two households at the least). You think you and your spouse can pretty much agree to anything, so you decide to file for divorce without consulting or hiring a lawyer in order to avoid the attorney’s fees. While people do this quite frequently, there are some massive, and incredibly expensive, pitfalls that can await you if you attempt to go it alone (or in legal-speak, pro se). The following is a list of reasons on why you should not file a divorce in NJ without a lawyer.

  • It could get expensive. I know you think that if you do not hire an attorney, you will avoid those expensive attorney’s fees. That is true. However, you should think of these fees as an investment. Doing property division on your own can be difficult, especially if your estate is particularly large or complex. Dividing up real property requires multiple documents and transactions. Trying to divide up your retirement uses multiple laws and procedures. Mishandling distribution of your retirement account can actually cost you huge fees or tax penalties that a lawyer would know to avoid. And these are just the property issues.
  • You could mess up your custody case. Even if you and your spouse agree to a custody arrangement that is fair, if you mislabel the agreement as shared custody instead of joint legal custody, this could have huge negative repercussions for you, resulting in a loss of parental rights in some respects. It is difficult and costly to modify orders after they are entered, and having a lawyer will make sure to catch any errors or misunderstandings before they become final. Lawyers can also give you advice on how to prepare your case for custody – including what not to do. Many parties think that talking to their children about the case, especially if they are older, is a good idea. A lawyer would guide you that it’s usually not a good idea – and if you want your child to state a preference as to who they would like to live with, a lawyer would be able to get this evidence in front of a judge through better venues than you speaking to your child. The opposing side could convince the court that you are trying to sway the child to like you more.
Continue Reading →

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Adultery is one of the most common causes of divorce in New Jersey. It can also make divorce incredibly fraught and complex, with emotions ruling the day instead of clear heads and rational thoughts. Sometimes, parties who divorce want to use the court system as a way of ‘getting back’ at their spouse, and dragging all their dirty laundry out for all to see. However, there is another way to handle the issues of adultery and divorce in New Jersey – through a ‘no fault’ divorce.

A no fault divorce is basically telling the court that you and your spouse can no longer get along. No one has to take the blame for the relationship falling apart, and it can help things go quicker. But, this choice isn’t for everyone, and sometimes individuals just need their day in court to move on. In these cases, a ‘fault’ divorce might be more appropriate. In these cases, one party has to prove the other’s misconduct which caused the divorce. Along with adultery, abandonment, abuse, or substance abuse can all be used as grounds for a fault divorce. Of course, due to the heavier burden of proof, litigation will be more costly and lengthy, so it’s important to think about your strategy before filing your divorce petition.

Despite this, one of the big advantages in filing a fault case for adultery and divorce in New Jersey used to be that judges get to look at whose fault it was in the break-up of the marriage when determining things like alimony and property division. Alimony, or spousal support, is what one spouse might pay to the other upon separation or divorce to ensure the other party can support themselves. In the past, only a fault divorce would allow a party to request alimony; luckily, things have progressed, and now that most people file for a no fault divorce, courts will rarely look to fault when determining whether alimony should be awarded. In New Jersey, the court will only consider crimes that have resulted in the death or serious bodily injury to their spouse (or attempts to do so). In other words, if one spouse has tried to kill the other, they will not be awarded alimony. The other time courts will consider adultery and divorce in New Jersey when determining alimony is if this adultery negatively affected the couple’s economic estate. So, for example, if a wife purchased her boyfriend an apartment in the city, this would have been a wasting of the assets and could be looked at when determining whether, and how much, alimony should be awarded. Continue Reading →

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Divorce is a painful experience that nobody wants to face, but there are ways to make the process easier on yourself. As you go through your divorce in NJ, remember these six keys that can help hold you together during this emotionally challenging time.

Get healthy.

Don’t allow yourself to ignore your physical health during your divorce. It can be tempting to retire to the sofa with a carton of ice cream, but you owe it to yourself to fight the urge. You can help yourself tremendously by eating right, getting plenty of sleep and keeping up with a regular exercise routine.

Pull in your friends. 

Now is not the time to isolate yourself. Turn to your best friends, your family or anyone else who is part of your support group. Make plans to meet friends for dinner or shopping, or just ask someone to come over and hang out. You need to spend time with people who lift you up.

Keep kids a priority.

It’s important to remember that children are not always open and clear about their feelings. If you have children, you need to spend plenty of time making sure that they are okay. Divorce in NJ can hurt kids if it’s not handled properly, and sometimes kids hide their fears and anxieties. If you can, get your kids into a counseling program just to make sure they aren’t suffering. Continue Reading →

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Will my alimony obligation end upon retirement under New Jersey alimony laws?

On September 10, 2015, the Governor of New Jersey signed into law an amended alimony statute. Said amended statute made a number changes in regard to alimony and retirement. According to the amended statute, there is now a rebuttable presumption that his or her alimony obligation will end upon attainting full retirement age.

 How is full retirement age defined under NJ alimony laws?

The amended alimony statute defines full retirement age when a person can collect full Social Security benefits.

Can the presumption that alimony terminates upon reaching full retirement age be rebutted under the alimony laws in NJ?

Yes, it is a rebuttable presumption. A court will consider the following factors in determining if the presumption of terminating alimony at full retirement age should be rebutted:

  • The litigants’ ages at the time of the motion for termination or modification of alimony;
  • The litigants’ ages when they married and their ages when alimony was awarded;
  • The amount and duration of economic reliance by the payee upon the other party during the marriage;
  • Whether the litigant has exchanged something of value for a longer or larger alimony award;
  • The sum and period of alimony formerly paid;
  • The litigants health when the retirement application was made;
  • The litigants’ assets at the time of retirement;
  • Whether the payee has obtained full retirement age;
  • All sources of income of both parties;
  • The party who is collecting alimony capability to have saved adequately for retirement;
  • Any other relevant factor.

Continue Reading →

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Going into divorce actions, people often do not realize that it is not just marital assets that are distributed by the court. Marital debt is also equitably distributed by the court. Equitable distribution in NJ does not mean equal. Distribution of debt will be done in a way that is seen as fair and reasonable under the circumstances of the case.

Types of Marital Debt

Marital debt consists of the debt incurred by either spouse during the course of the marriage.

Credit card debt is commonly part of marital debt that will be distributed by the court. The general rule is that the full amount of the credit card debt, whichever spouse incurred the debt, is distributed between the parties, though there are exceptions. When only one party has derived a benefit for the expenditure, a court may decide if only that party should be liable for the debt. The court will not go through all charge statements, item by item. If there is a situation where only one spouse has benefited by substantial expenditures, then your attorney will bring that up to the court to have the court consider assessing payment of that particular credit card debt to that spouse.

Mortgages against the marital home or other real property will be distributed in the divorce action as well. There are two typical ways to address the mortgage:

  • Sell the real property, pay the mortgage and any proceeds will be divided pursuant to the distribution of marital property made by the court. This can happen right away, or one spouse may stay in the house with the children for a stated period of time before the house is sold.
  • One spouse can buy out the interest in the real property from the other spouse and take responsibility for the mortgage, often refinancing the mortgage.

Continue Reading →

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Sometimes, in family law, when you hear the words ‘Restraining Order,’ it is easy to assume that there was an issue of family violence between spouses, or people in a dating relationship. But it is important to remember that the statute is much broader than this, and includes anyone in a familial relationship as well. The case out of New Jersey called ‘R.G. v R.G.’ deals with the issue of domestic violence between brothers, and the role of New Jersey restraining orders between siblings and other members of the family, outside of a romantic or dating relationship.

Essentially, the argument stemmed from disagreements on how to care for the brother’s elderly parents, particularly after their mother suffered an illness and required more extensive care than could be provided by the children. Nasty emails, text message exchanges and heated conversations culminated into a physical altercation while both men were at the parents’ care home, wherein the defendant physically threatened his brother, and ended up pushing his brother at least 6 times, resulting in two falls and his glasses falling off. The police were called, and the defendant was charged with simple assault. During the initial hearing for a restraining order, the Plaintiff admitted that he believed an order was necessary, and that he had fear for the safety and well-being of himself and his family. He also admitted that, aside from this incident, the brothers did not have any history of domestic violence, although the defendant’s son had also successfully obtained a restraining order against his own father two years earlier. In light of the evidence, the trial court entered a restraining order against defendant, who of course, appealed.

To appeal a trial court’s entry of a restraining order in NJ is not easy, as the appellate court gives great deference to the trial courts findings of fact and conclusions of law. The complaints defendant presented to the court was first, a jurisdictional challenge, stating that the plaintiff did not meet the statutory definition of a victim of domestic violence. Luckily for the plaintiff, the statute had been amended prior to the incident in question, which significantly expanded the definition of a victim under the statute. Previously, the requirement was that the relationship needed to be between current or former members of the same household. The statute was amended to protect anyone over the age of 18 who has been subjected to domestic violence by “any other person who is a present household member or was at any time a household member.” (N.J.S.A. 2C:25-19(d). The court did not spend much time on this argument, finding that the statute intended to include victims just like plaintiff in this case. Continue Reading →

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The recent case out of New Jersey between Michael J. Thieme and Bernice Aucoin-Thieme explores the rules of equitable distribution and principles of equity in a love affair turned marriage, turned sour. The two parties met, briefly dated, and shortly after, Bernice discovered she was pregnant. Bernice had been working at a part-time retail job while Michael worked a high-power job for a bio metrics company, often working upwards of 90 hours a week with extensive travel. Michael’s relationship with the founders of the company was close, and they appreciated the work he had put into the success of the company. Therefore, they created a Statement of Understanding, essentially confirming that Michael would get a good share of the company should it ever be sold, in appreciation for all of his hard work and contributions to the company. In light of Michael’s demanding schedule and his significant compensation, the couple decided that, upon the birth of their child, Michael would continue to work but Bernice would stay home, raise the child and care for their shared residence. They talked frequently of marriage, but decided to use their time and money for other things that took priority. In 2003, their child was born.

Over a period of 8 years, the parties lived together, with Michael working long hours, Bernice conducting minor repairs on the property, taking care of their rental portfolio, and raising their child full-time. The relationship was fraught with disagreements and arguments, but eventually, in 2010, the parties finally married. Their honeymoon period was short-lived, and the relationship deterioriated quickly, with angry words and some nasty emails exchanged. In one email, Michael acknowledged the sacrifice that Bernice had made in order for him to pursue his career, and wrote that she should be fairly compensated and taken care of for such an act. Eighteen months after they said ‘I Do,’ Michael filed for divorce. The parties reached a settlement agreement, and it did not include any potential bonus from the company (IBG), particularly because Michael stated that there was no guarantee, and certainly no amount of money that was specifically discussed. While Bernice was aware of this statement of understanding, she was under the impression that Michael would allow her to share in any bonus he might receive, given his words and behaviors over the entire course of their relationship.

As luck would have it, just three month’s after the final judgment of divorce between the parties, IBG was sold and Thieme received a whopping $2.25 million as a Closing Bonus from the company. Not surprisingly, Bernice filed suit for her share of said bonus. In both the trial and appellate courts, the equitable distribution statute was examined fully. The court held that the equitable distribution statute concerned only the time of marriage, with no recognition of any partnership prior to ‘I Do.’ Therefore, the concept of palimony in New Jersey in this case would not apply. Palimony would be any payment to a person who cohabited with another as consideration for various sacrifices or agreements between the parties during their relationship.  But, because the parties did get married, palimony in New Jersey was unavailable to  Bernice. Therefore, she was ultimately being awarded around $30,000.00 of the bonus – or less than 2 percent. But, at the Supreme Court, the inquiry did not end there. Bernice argued that, under principles of equity, their long period of cohabitation should entitle her to a better share of the bonus in exchange for the sacrifice she had made to Michael to raise their child, maintain their home, and allow him to pursue his career. While the Supreme Court agreed that the equitable distribution statute was correctly interpreted and that it does not govern property between parties who have cohabited but never married, the court agreed that principles of equity demanded an examination into Bernice’s argument of unjust enrichment. Under this theory, Bernice would need to show that Michael received a benefit, and it would be unjust for him to retain the benefit without some compensation to her. If this is shown, then the court can impose a constructive trust on property to ensure compensation to the plaintiff. The court relied heavily on the case  Carr v. Carr, 120 N.J. 336 (1990) in delivering its rationale. There, the wife claimed that she should receive an equitable distribution of assets because the husband ended up dying during their lengthy divorce proceedings, and a judgment was never actually entered. The court agreed, imposing a constructive trust because the estate should not contain the share which would benefit Mrs. Carr because it would be unjust enrichment. Continue Reading →

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There is no question that parents owe their children a duty of support. The struggle between courts and parents alike is how long that duty needs to last. Most states agree that 19 years of age is the latest a parent is required to support the child, including New Jersey. However, in New Jersey, emancipation can occur once the child turns 18 or becomes financially independent, in which case the parents would file papers requesting the child be emancipated. But what about when the child decides to seek higher education – should the parents be prepared to pay for this? Is there a right for a child to be educated? One recent case, entitled Ricci v. Ricci, explores this issue in greater detail, and in more interesting circumstances.

In this case, parents of the child, Caitlyn, agreed to emancipate her when she left her mother’s home to live with her grandparents at 19. Having been divorced since Caitlyn was 4, both parties filed a consent order terminating child support. Caitlyn intervened, asking to vacate the emancipation order and also requesting an order for her parents to provide funds so she could attend college. The appellate court goes over the record at length, with both intervenor and the other parties disagreeing as to the family dynamics which led Caitlyn to live with her grandparents.

The mother alleged that Caitlyn smoked marijuana, had trouble with alcohol, was sexually promiscuous and essentially failed to follow the rules imposed on her in her mother’s home. Caitlyn stated she simply did not fit in with either her mother or father’s new family, and to ease tensions, decided to live with her grandparents. Caitlyn’s father corroborated this view, stating Caitlyn had not spoken to either parent for over six months, missed family birthdays, and asserted that he opposed her moving in with his parents, as he himself was estranged from them and felt they were a root cause for Caitlyn’s rebellion. Continue Reading →

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What happens when a party to a divorce proceeding, before, during or after divorce, disposes of personal property belonging to the other party?  The party disposing of the personal property will be penalized in some fashion.  This question came to the forefront in the Superior Court, Ocean County before the Hon. L.R. Jones, a question that comes up frequently in NJ Family Law.

In this case, C.S. v. B.S., the parties made an agreement, later ordered by the court, to share the photos and videos taken during the 25 year marriage, all of which were in the possession of the wife. The wife provided the husband with only a few photos of his boyhood, one of which was ripped into pieces. Before bringing a court action, the husband attempted to get the wife to comply with the Order to share marital photos, and she responded by saying that she had gotten rid of all photos  because she did not want to be reminded of him. The photos and videos were kept in a big footlocker and various boxes at the former marital home, so they were nowhere the wife would have been regularly seeing them.

These photos and videos disposed of by the wife included their child’s birth, weddings, graduations, family celebrations and various family parties and gatherings, of great sentimental value. The husband brought this action seeking a remedy for the wife’s failure to comply with the court’s order to share the marital photos and videos and her, in fact, having disposed of it all. Continue Reading →

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